제사주재자의 결정방법에 관한 小考 - ‘전통’의 관점에서 본 대법원 2008. 11. 20. 선고 2007다27670 전원합의체 판결의 비판적 검토 -

This study is to critically review a majority opinion relevant to the Supreme Court Decision 2007DA27670 delivered on November 20, 2008 in view of ‘Tradition’. The majority opinion is as in the following: The traditional custom, ‘the legitimate eldest son should preferentially be the ancestor worship supervisor regardless of the agreement among heirs’, ignores the voluntary decision made by heirs and also is against Clause 1, Article 36 of Korean Constitution based on the dignity and equality of human beings. Nevertheless, at the same time, the majority opinion moves toward the following: The ancestor worship supervisor should be elected in accordance with the agreement among the coheirs of the deceased. In case they do not agree on it, the eldest son of the deceased should be the ancestor worship supervisor provided he has no particular reason for which he cannot maintain the position. If the eldest son already died, his eldest son, i.e., the eldest grandson, should be the ancestor worship supervisor. In the event that no coheir has a son, the eldest daughter of the deceased should be the ancestor worship supervisor. The problem is that the majority opinion segregates coheirs according to gender and age. It may be unreasonable in contemporary society, and also it cannot meet its premise and thus contradicts itself. Moreover, it runs counter to the constitutional principles that human equality must be realized even in family relations. As the family law has traditionally been based upon conservatism, traditional values should not depreciated in the construction of law. However, traditional values involve historicity and the times, hence they should be under the contemporary values such as value priority, universal values, justice and humanitarianism. In conclusion, even the traditional values of family system should not be against the spirit of the constitution, i.e., the dignity and equality of human beings.